He added: “The covid crisis has served as sort of a constitutional stress test.”
Alito said he was not criticizing officials for their policy decisions — “I’m a judge, not a policymaker” — and said before launching into the speech that he hoped his remarks would not be “twisted or misunderstood.”
Alito, one of the court’s most conservative members, said it would be hard to imagine before the pandemic that speeches and concerts would be off-limits and that churches would be empty on Easter and synagogues vacant on sacred holidays. The Supreme Court itself has been closed to the public since March, and the justices hold their meetings and hear oral arguments via teleconference.
And while he said he wasn’t being critical, he said the restrictions on public gatherings and worship services highlighted “trends that were already present before the virus struck,” which he identified as a “dominance of lawmaking by executive fiat” rather than by legislators.
Alito was in the minority this summer when the court in emergency orders upheld local officials who limited the size of in-person worship services in California and Nevada. He was particularly aggrieved that the governor in Nevada limited church attendance while allowing casinos to reopen at 50 percent capacity and called for visitors to return to the state. The 51st person in line for a church service was out of luck, Alito said: “Forget about worship, and head for the slot machine or maybe a Cirque du Soleil show.”
Alito’s blunt words are likely to reignite questions about how far Supreme Court justices should go in speeches. The court has a 6-to-3 majority with President Trump’s three nominees, but Alito sounded as if conservatives were outnumbered on the court and in society.
He worried about religious liberty becoming a second-class right — although religious conservatives won all three of their cases at the court last year — and that the Second Amendment was not respected. He repeated his criticism of the court’s decision in Obergefell v. Hodges that granted same-sex couples the right to marry. He told those watching that he predicted at the time that those who continued to hold to the notion that marriage is only between a man and a woman would be seen as bigots. “That is just what is coming to pass,” he said.